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AMERICAN HISTORICAL ASSOCIATION. 



riY'S TREATY AND THE SLAVERY INTERESTS 
OF THE UNITED STATES. 



FREDERIC AUSTIN OGG, A. M., 

INSTRUCTOR IN HISTORY IN INDIANA UNIVERSITY. 



( From the Annual Report of the American Historical Association for 1901, 
Vol. I, pages 273-298.) 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 
1902. 



v: .. -' ^ 



fEB 3 1S03 
D. of 0, 






XIII.-JAY'S TREATY AND THE SLAVERY INTERESTS OF THE 
UNITED STATES. 



By FREDERIC AUSTIN OGG, A. M., 

INSTRUCTOR IN HISTORY IN INDIANA UNIVERSITY. 



H. Doc. 702, pt. 1 18 273 



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in 2010 with funding from 
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JAY'S TREATY AND THE SLAVERY INTERESTS OF THE UNITED 

STATES. 



By Frederic Austin Ogg, A. M. 



The vast importance of negro slavery as an influence in our 
national diplomacy after the rise of abolitionism has been 
very generally taken into account by the historians of the 
middle period. That the "peculiar institution" had not a 
little to do with our foreign relations in the earlier days of 
the Republic has perhaps not been so commonly appreciated. 
The subject may be said to have entered our diplomac}^ almost 
at its beginning. The provisional treaty, signed at Paris 
November 30, 1782, contained in its seventh article the stipu- 
lation that— 

* * * His Britannic Majesty shall, with all consistent speed and with- 
out causing any destruction or carrying away any negroes or other prop- 
erty of the Arri.l- ciii inhabitants, withdraw all his armies, garrisons, and 
fleets from the said United States, and from every port, place, and harbor 
within the same. * * * 

Although the incorporation of the negro clause was purely 
the result of the chance arrival of Henry Laurens at Paris on 
the closing day of the negotiation,'^' the practicability of such 
a provision had pi'eviously been urged by Franklin in his 
interviews with Oswald, and the conditions attending the 
British withdrawal from America so manifestly demanded 
some such safeguard that the matter could not have long been 
denied serious diplomatic consideration. 

Throughout the Revolution it had been a favored line of 
British policy to weaken the colonists' power of resistance by 
depriving them of the services of their slaves. To this end 
proclamations had been issued from time to time, notably by 
General Clinton and Lord Cornwallis, offering freedom to 

aWorks of John Adams, Vol. Ill, p. 336. 

275 



276 AMEEICAN HISTOEICAL ASSOCIATIOlsr. 

all negroes who should take refuge within the British lines, 
and the inducements thus held out had been by no means 
lacking in their intended effect. Moreover, during the later 
3^ears of the war, when the British armies were overrunning 
the slave-stocked South, very many negroes were carried off 
by force along with other personal property of the inhabit- 
ants. Thus Jefferson tells us that Virginia alone lost 30,000 
during Cornwallis's invasion in 1778, and many more subse- 
quently by reason of Arnold's predatory incursion. Ramsay, 
the historian of South Carolina, is responsible for the asser- 
tion that between 1775 and 1783 that State lost 25,000 negroes, 
valued at i^l2, 500,000. According to contemporary estimates 
Georgia fared even more badly, losing in all fully seven- 
eighths of her slaves. Five thousand were sent from Savan- 
nah to the West Indies at a single time. 

Of course the negroes thus carried away prior to the sign- 
ing of the treaty of peace were irrecoverably lost to their 
masters. When the treaty was made, however, there were 
within the British camps a considerable number of negroes 
whom Laurens, by his suggested clause, hoped to save from 
deportation and ultimately restore to their owners. Sir Guy 
Carleton, successor to Clinton after the Yorktown surrender, 
when apprised of the treat}^ stipulation, assumed the ground 
that the negroes who had ffed from their masters were no 
longer to be considered "property of the American inhabit- 
ants," and, besides, that in assenting to the Laurens clause 
of the treaty it could not have been the intention of the Brit- 
ish Government "to reduce themselves to the necessity of 
violating their faith to the negroes who had come into the 
British lines under the proclamations of his predecessors in 
command." « The three commissioners appointed by Wash- 
ington to be present at all embarkations of British troops for 
the purpose of detecting and reporting violations of the treaty 
were sometimes ignored, sometimes deceived, and sometimes 
prevented from even witnessing the lading of the ships; so 
that the carr^dng away of the negroes went steadil}^ on until 
the last of the British had taken their departure. 

When, in 1785, John Adams was sent as our tirst minister 
to the court of St. James, the question of the negroes, so long 

a See Carleton' s letter to General Washington, May 12, 1783, American State Papers, 
Vol. I, p. 190. 



jay's treaty and slavery interests. 277 

and ineffectually wrangled over by the military authorities in 
America, was transferred to the realm of actual diplomacy 
along with the other alleged violations of the treat}^ of peace. 
For almost a decade the subject was discussed — first by Adams 
with Carmarthen and Pitt, then by Gouverneur Morris with 
Pitt and the Duke of Leeds, and subsequently by eJeft'erson 
with George Hammond, the lirst British minister to the 
United States;" but the clearly determined British policy was 
to postpone an adjustment of the controversy pending" the 
delayed execution of several engagements of the United States 
under the Paris treaty. 

The declaration of war against England and Holland by the 
French convention, February 1, 1793, brought with it a train 
of consequences which seriously endangered the peace and 
prosperity of America. The British version of belligerent 
rights on the high seas struck deep at the trade, not to speak 
of the honor, of the 3^oung nation. The seizure of French 
goods on American vessels, the rigid enforcement of the rule 
of 1756 in the case of the West India trade, and the impress- 
ment of American seaman, made up a list of grievances which 
tested our qualities of forbearance to the extreme. Congress 
waxed warm in debate of retaliator}" duties, preparations for 
war, and the laying of embargoes. 

To stem the tide which seemed to be carr3dng the nation 
inevitably into war, the President resolved to send to London 
an envoy extraordinar}^, whose dut}^ should be the securing 
of redress for injustice suffered during the war then in prog- 
ress, and, if possible, a general treaty covering the wide range 
of matters in dispute between the two countries. On the 16th 
of April, 1794, Chief Justice Jay was nominated for the mis- 
sion. Three days later the Senate confirmed the nomination. 
It may well be questioned whether a wiser choice could have 
been made. Jay's qualifications included an unyielding integ- 
rity, a keen sense of justice, a judgment unusually sound, if 
not brilliant, freedom from prejudice, and a lofty spirit of 
pride in his country's honor. Of qualifications fitting him 
specialh^ for this particular undertaking he had not a few, 
and chief among them experience. To him, perhaps better 
than to any other man, was known the entire history of our 
relations with Great Britain. Not onlv had he been a com- 



a American State Papers: Foreign Relations, Vol. I, p. 188 et seq. 



278 AMERICAN HISTORICAL ASSOCIATION. 

missioner at the making of the treaty whose violations were 
to be subjects of the prospective negotiation, but by reason 
of occupying subsequently for a number of j^ears the office 
of Secretary for Foreign Affairs he had been called upon to 
follow closely the progress of its execution. 

With much personal reluctance, but yet with a firm inten- 
tion to spend his best energies in the prosecution of his mission, 
Jay set sail from New York on the 12th of May and landed 
at Falmouth on the 8th of J une. By the President's letter of 
credence he was authorized to negotiate a settlement not only 
of the questions which had recently sprung up by reason of 
the war in Europe, but also of all infractions of the Paris 
treaty." By Secretary Randolph's instructions the envoy was 
further directed to keep the two general subjects of negotia- 
tion entirely separate and to give attention first to the more 
immediate questions of the war. ^ Nothing was said specifically 
by the Secretary concerning the carrying away of the negroes 
by the British, but as appeared from subsequent transactions 
it is quite certain that the American envoy was expected to 
obtain such satisfaction as he could upon that point along 
with others connected with the treaty. 

Most features of the Jay treaty, together with the richly 
suggestive events that crowded full its history, have been 
thoroughly investigated and are now easily intelligible to even 
the passing student of the period. Because, however, the 
subject of negro slavery is nowhere mentioned in the instru- 
ment, there has been a natural tendency to overlook the influ- 
ence brought to bear upon the treaty, in both its making and 
ratification, b}^ the slavery interests in the United States. A 
careful examination of contemporary state papers, corespond- 
ence, and Congressional debates reveals a connection of slavery 
and the treaty which no one who would understand in all its 
essential aspects this most important chapter in our diplomatic 
history can in any wise afford to ignore. It is in the very fact 
that slavery is not mentioned in the treat}^ that the point of 
interest lies. It should of course be understood that the part 
which the slavery interests played in the history of the Jay 
treaty was significant, not so much because by it the immedi- 
ate event was changed, as because it may be regarded as on^ 
this occasion that slavery made its earliest formal entrance into' 

a Amer. St. Papers: Foreign Relations, I, 470-472. 

b Ibid,, I, 472-474. Correspondence and Public Papers of John Jay, IV, 10-21. 



jay's treaty and slavery interests. 279 

the diplomacy of the nation. Intermittent claims on its behalf 
had been made before, but now for the first time the force 
of public sentiment was broug-ht definitely to bear upon the 
subject. 

Briefly, then, we may inquire three things: (1) What efl^ort 
was made to cover the negro question in the provisions of the 
treaty? (2) Why was the subject finally omitted? and (3) 
What were the efl'ects of this omission upon the reception and 
ratification of the treaty in the United States? 

Jay's first official interview with Lord Grenville, the British 
secretary for foreign atiairs, was held on the 20th of June, 
1794. Thereafter for some time the negotiations were exclu- 
sively along the line of the recent maritime and commercial 
controversies, and it was only after certain concUisions had 
been reached regarding these that the negotiators felt free to 
turn their attention to the long standing questions of treaty 
violation. Jay suggested the employment of verbal confer- 
ences instead of the more tedious plan of formal written 
communication, which was readily assented to by Grenville, 
and which was doubtless the part of wisdom, though it was 
hardly calculated to enlighten the historian a hundred years 
later. The consequence is that we know comparatively little 
of the treaty in process of formation. Jay's intermittent and 
far from voluminous reports to Secretary Randolph constitute 
almost our only reliable source of information." From these 
we gather, however, that early in the negotiation concerning 
the treaty violations arose the question as to which party had 
been first guilty — for there was no attempt on the part of 
either to claim a full execution of the obligations assumed at 
Paris a decade before. Now, when Jay was Secretary for 
Foreign Aflairs, in 1786, he had declared emphatically in his 
report to Congress that there had not been a day since the 
treaty took effect on which it had not been violated in America, 
and he had roundly upbraided the States for having taken the 
initiative in violating the treaty through their numerous laws 
restrictive of the rights of British creditors.'^ It would not, 
of course, have been good diplomacy to make such a sweeping 
concession to Grenville. To do so would have meant surren- 
der of even such ground as Jay felt he could conmiand. He 

"The correspondence of Jay and Randolph relative to the treaty may be found in the 
American State Papers: Foreign Relations, I, pp. 476-518. 
b Secret Journals of Congress, Vol. IV, p. 183 et seq. 



280 AMERICAN HISTORICAL ASSOCIATION. 

was too thoroughly convinced that his cause was a righteous 
one to sacrifice it all by making an admission which Grenville 
would certainly have taken for far more than it was worth. 
The sheer fact that the States had violated the treaty first in 
order of time — which, moreover, the majority of Jay's con- 
stituents would have refused to acknowledge — was no longer 
of great consequence in view of the general policy of recrimi- 
native violation acted upon for ten j^ears by both nations. 
Jay therefore began by insisting to Grenville that the carry- 
ing away of negroes contrarj^ to the seventh article of the 
treaty was the first aggression." But (Trenville refused to see 
in this any violation at all. 

He held to the time-worn British contention that the treaty 
provision had been intended only to prevent depredation at 
the departure of the soldiery; that no alteration in the actual 
state of property was operated or intended by the article; 
that every slave, like every horse, which strayed or escaped 
from within the American lines and came into the possession 
of the British army became, by the laws and rights of war, 
British property, and, therefore ceasing to be American 
property, the exportation thereof was not inhibited by the 
stipulation in question; that to extend it to the negroes who, 
under the faith of proclamations, had come in to them, of 
whom they thereby acquired the property, and to whom, ac- 
cording to promise, liberty had l)een given, was to give to the 
article a wider latitude than the terms of it would warrant, 
and was also, unnecessarily, to give it a construction which, 
being odious, could not be supported by the known and estab- 
lished rules of construing treaties. The conclusion, then, of 
the whole matter, according to Grenville, was, in substance, 
that the British were forbidden to carry away only such 
negroes as had come into their possession after the signing of 
the treaty at Paris, and that in the disposal of those within 
their lines at that time they were left entirely without restric- 
tion.* 

The detailed defense of Jay upon this point we do not have. 
In his report to Randolph, however, he indicated that in his 
argument with Grenville he had used substantially the same 
reasoning as in his Congressional report of 1786.'' So that we 

« Jay to Randolph, 13 Sept., 1794— Amer. St. Papers, I, 485. 

fcjay to Randolph, ibid. 

e Jay to Randolph, ibid. The report cited above. 



jay's treaty and slavery interests. 28] 

shall certainly not go far astray in using that document to 
ascertain its author's personal opinion on the negro question. 
As to the merits of the American claims for compensation, 
his ideas were very pronounced. He chose to consider the 
matter in three aspects: (!) As to the negroes captured and 
disposed of during the course of the war; (2) as to negroes 
who remained with and belonged to Americans within the 
British lines; and (3) as lo negroes who, confiding in promise 
of freedom, had fled from their masters and taken refuge with 
the British army. The first of these classes, declared Jay, 
was manifestl}" not comprehended in the prohibitorj^ clause of 
the treaty. By the laws of war all goods and chattels captured 
flagrante hello became the property of the captors. Though 
some might be inclined to doul)t whether negroes can ever be 
so degraded as to constitute mere chattels, the laws of both 
Great Britain and the United States clearly recognized that 
man might have property in man. The treaty spoke signifi- 
cantly of ''negroes or other jyvoperty of the American in- 
habitants. " If captured negroes might not lawfully be carried 
away, no more might captured arms or provisions. In this 
reductio ad absurdum Jay and Grenville found themselves in 
perfect agreement. As to the second class of negroes — i. e., 
such as belonged to and remained with Americans within the 
British lines — Jay considered the treaty provision fully appli- 
cable, for, as he said, "As the enemy had never taken them 
from their masters, nor treated them as booty, the property 
remained unchanged." Of the validitj^ of this proposition 
Grenville was not so sure. 

It was Jay's third class — i. e., the negroes who, influenced 
by British proclamations, had fled from their masters across 
the lines into the British camps — that presented the greatest 
difficulty. Such negroes Ja}^ believed to be clearly compre- 
hended by the terms of the treaty. According to his logic, 
they remained as truh^ as ever the property of their masters. 
By mere flight they could not extinguish their slave character. 
Inasmuch as they had not been captured by the British, but 
only received as friends and refugees, they had in no sense 
become the property of the British, and hence must still be 
the property of the Americans. From this it followed that it 
was an infraction of the seventh article of the treaty to carry 
them awa}^. Grenville, however, took the ground that when 



282 AMEEICAN HISTOEICAL ASSOCIATION. 

the negroes crossed the British lines they thereby ceased to be 
American property. The British might or might not con- 
sider them their property, as they chose, but in any case the 
claims of the former owners ceased. Just because a piece of 
negro property had the peculiar functions of intelligence and 
locomotion, and so might voluntarily betake itself within the 
British lines, while a bag of corn or a bale of cotton must per- 
force be laid hold of and literally carried away, Grenville 
did not conceive that the former was any less a transfer of 
ownership than the latter. 

Jay was keenly appreciative of the difficult position which 
Great Britain was forced to occupy by reason of having made 
two incompatible promises — the one to the negroes, the other 
to the United States; but he did at least wish to bring Gren- 
ville to acknowledge that the two promises were incompati- 
ble. He was not the man to take delight in upholding the 
slavery interests of his country. Personally he was vigor- 
ously opposed to the slave system, and long ago had expressed 
the conviction that until the States should abolish it "their 
prayer to Heaven for libert}^ would be impious." Neverthe- 
less, he took the eminently sensible view that as long as men 
continued to hold property in slaves such property must be 
protected like any other; and on this ground he was con- 
vinced that an injury had been done his slaveholding country- 
men, and in a conservative but firm manner he insisted that 
reparation be made. 

Regarding Great Britain's conflicting engagements as to the 
negroes — on the one hand to give them liberty, on the other 
not to carry them away — Jaj' took ground substantially as- 
follows: Great Britain had made solemn promises of free- 
dom to all slaves seeking the lines of her arnw. These prom- 
ises, held out through the proclamations of Clinton and 
Cornwallis, should by no means have been made, but now 
that they had been made and thousands of negroes had acted 
upon them, the United States ought not to expect Great Brit- 
ain to break them. In other words, the carrying away of the 
negroes was justitiable in view of the pledges previously made 
to them. To restore the negroes now, after the elapse of a 
decade, would be manifestly impossible, just as Washington 
had urged upon Carleton that it would be; besides, such resto- 
ration would still involve the violation of Great Britain's 



jay's treaty and slavery interests. 283 

pledge of freedom. But, continued Jay, Great Britain ought 
not to expect to escape the consequences of her folly, or rather 
the folly of her generals in America. There was just one 
honorable way of escape, and that was by paying the Ameri- 
cans for the slaves. Thus only could faith be kept with the 
negroes and at the same time substantial justice be done their 
masters. This, then, was the thing for which Jay contended. 
But Grenville still denied that the slaves carried off were any 
longer American property. 

So the negotiations dragged. Other matters, as the west- 
ern posts, were taken up and conclusions concerning them 
reached with comparative ease. Again and again the negro 
question was brought forward, but always with the same result. 
Regarding it Jay could only record, "On this point we could 
not agree." At length practically everything else was set- 
tled. Projets of a treaty were interchanged and in neither 
was the subject of the negroes mentioned, though the evacu- 
ation of the western posts received careful attention. On the 
19th of November the negotiations were closed. There was 
in the treaty not a word on the subject of the negroes. "Va- 
rious articles," wrote Ja}^, " which have no place in this treaty 
have, from time to time, been under consideration, but did 
not meet with mutual approbation and consent."" Of these 
articles discussed, but not adopted, one providing compensa- 
tion for the negroes carried away was b}^ no means the least 
important. 

In these days of ocean cables and steamships it is difficult 
to realize the slowness of communication a hundred years ago 
and the comparative isolation of our ministers abroad. There 
is much reason to believe that had rapid communication been 
then possible the Jay treaty would have been made to differ 
in some essential respects from the form it finally assumed — 
or at least the trend of the negotiation would have been con- 
siderably modified. Jay's letter of the 13th of September, in 
which was set forth Grenville's interpretation of the slave 
provision of the treat}^, did not reach Secretary Randolph 
until the 11th of November. In his reply, the following day, 
the Secretary wrote: "The reasoning of Lord Grenville in 
relation to the negroes is so new to me "^" "^' * that its 
accuracy can not be assented to without the fullest reflection."* 



aJay to Randolph, Amer. St. Papers, I, 504. 
b Randolph to Jay, Amer. St. Papers, I, 501. 



284 AMERICAN HISTORICAL ASSOCIATION. 

Of course the treaty had been signed long before even this 
mild expression of dissent reached Jay. In the meantime 
there was a growing uneasiness in the Department of State 
lest Jay should not secure an adjustment of the negro claims 
and lest failure to do so might materially increase the antici- 
pated popular opposition to the treaty. 

Never in the history of the country has a treaty been nego- 
tiated under circumstances of such division of sentiment. 
From the moment Jay was dispatched on his mission the 
party which sympathized with France ridiculed and de- 
nounced both the enterprise and the man who had l)een 
chosen to undertake it. When Jay wrote home that he had 
been well received in England, the Republicans assumed that 
he had betrayed the interests of his country as the price of 
royal favor. There was little hope on the part of the Federal- 
ists that the treaty, however liberal its terms, would not arouse 
a storm of opposition. The Administration recognized this 
hostile state of public opinion and naturally desired that the 
treaty be such as to give just as small legitimate ground for 
attack as possible. Secretar}^ Randolph, himself a South- 
erner, and knowing full well the anti-British sentiment in 
the Southern States, due largely to Great Britain's confisca- 
tion of slave property, grew especially anxious that the negro 
question be not passed unmentioned in the treaty. In a let- 
ter to Ja}", December 3 (about two weeks after the treaty had 
been concluded), Randolph declared that he was " extremely 
afraid*" that the reasoning of Grenville about the negroes 
would not be satisfactory. ''Indeed, I own," he confessed, 
"that I can not myself yield to its force. But if you omit 
mentioning them at all will not some quarters of the Union 
suppose themselves neglected % " ^'- About two weeks later, but 
yet before the news of the treaty had reached America, Ran- 
dolph sent to Jay a detailed consideration of the whole ques- 
tion.'^ Although this belated message had no part in the 
making of the treaty, yet its ingenuous reasoning merits some 
attention, particularly when its official character is taken into 
account. 

The main point in Grenville's contention had been that 
when the negroes came within the British lines they thereby 
ceased to be American property. To this Randolph made 

'(Randolph to Jay, Amer. St. Papers, I, 509. 

i' Randolph to Jay, Dec. 15, 1794, Amer. St. Papers, I, 509. 



jay's treaty and slavery interests. 285 

reply that while property is acquired in movables as soon as 
they come within the power of the enemy, yet property 
rig-hts thus acquired in war may, by treaty of peace, be re- 
nounced. Thus Randolph freely admitted, as Jay had not 
done, that the negroes in question had become the property 
of the British throug'h the regular processes of war, but 
added that by the treaty of peace Great Britain had bound 
herself to release all such negroes then in her possession. 
He understood that this stipulation had been in the nature of 
a compromise, since it had been agre^a that the British debts 
should be paid, and the States in which were a majority of 
the debtors depended for their ability to pay chiefly on the 
culture of the soil, for which, in turn, they were dependent 
upon slave labor. He regarded the treaty stipulation as 
superfluous if it signified onl}^ an engagement against further 
depredations. The mere cessation of the war meant that 
much. 

It will be recalled that Grenville had declared the treaty 
stipulation '"'odious,'' if it meant that the negroes who had 
sought the British lines under promises of freedom were to 
be returned to their American masters. It is a rather vague 
principle of international law that a nation is not bound to 
the execution of a treaty provision which is clearly of such a 
nature as to violate its own conscience as well as the sense of 
justice and right of the world at large. Under cover of this 
principle Grenville had taken the ground that, even if it had 
been the intention of the British commissioner at Paris that 
the negroes should be remitted to bondage — a thing which, 
however, was far from being conceded — still, on the basis of 
common moralit}', England was not to be expected to execute 
such a stipulation. This argument aroused nothing but ridi- 
cule on the part of Randolph. He declared that the principle 
of "odious" agreements was entirely too vague to be made 
use of in the present matter. He dwelt at length upon the 
facts that Great Britain had fostered the institution of slavery 
in the American colonies, and hence was largely responsible 
for its existence there; that in the British colonies elsewhere 
slaver}" was maintained under the protection of the Govern- 
ment, and declared that it was mere cant and h3'pocrisy for 
England to repudiate treat}^ obligations recognizing slavery 
on the ground that they were "odious." 



286 AMEEICAN HISTOEIOAL ASSOCIATION. 

"You must be too sensible," concluded Randolph, in his 
letter to Jay, "of the anxiety of many parts of the United 
States upon this subject to pass it over unnoticed. Permit 
me, therefore, to beg your attention to the foregoing ideas, 
since I have it greatly at heart that your negotiation may not 
be encumbered by any obligation which may be anticipated." 
This well-meant but really quite unnecessary admonition 
reached Jay on the 5th of February, 1795. To it he could 
only reply that the authorities at Washington and the people 
at large must remember that in the negotiation of a treat}^ it 
takes two to make a bargain. "We could not agree about 
the negroes. Was that a good reason for breaking up the 
negotiations ? " '^ Jay's plan of action had been to secure every 
possible concession from Great Britain, but never to endanger 
the whole treaty by stubbornly refusing to yield on compara- 
tively minor points.. That the treaty would be received with 
ill favor in many quarters none knew better than himself; 
but he felt secure in the consciousness that he had negotiated 
as successfully as anyone could have done under the circum- 
stances. After returning to America, May 28, he refrained 
from attempting to influence the President and Senate to sanc- 
tion and ratify the treaty, and did not even so much as write 
a defense for the consideration of the people. 

Although the treaty had been signed at London on the 19th 
of November, 1794, it was not until the 17th of March, 1795, 
that a copy of it was transmitted by Secretary Randolph to 
the President. Congress had adjourned just two weeks be- 
fore. Hence it became necessary to call a special session of 
the Senate to consider the question of ratification. By the 
8th of June a quorum was present and the debate upon the 
treaty was begun. Neither the treaty nor the Senate discus- 
sion of it was at the time made public— a fact which aroused 
much suspicion and not a little vituperation on part of the 
Republicans. During the course of the deliberations consid- 
erable dissatisfaction was manifested in the Senate regarding 
several features of the treaty. It was proposed by some 
members to reject it altogether, by others to accept it only in 
part. As bad been anticipated by Randolph, the failure of 
the treaty to provide compensation for the negroes was seized 
upon by the Southerners. Motion was made to recommend 

a Jay to Randolph, Feb. 6, 1795, Amer. St. Papers, I, 518. 



jay's treaty and slavery interests. 287 

the President to renew the negro claims and attempt to secure 
a satisfactor}^ adjustment of the matter. Mr. Gunn, of Geor- 
gia, presented resolutions providing that Jay be instructed to 
press the subject of compensation on the ground that the set- 
tlement of the question would ""'tend to produce the desired 
friendship between the two Governments." The motion, how- 
ever, was lost, as were also the resolutions. After a fort- 
night's discussion the Senate voted, 20 to 10 — a bare constitu- 
tional majority — to uphold the President in the ratification 
of the treaty. Washington had written of the treaty^: "Al- 
though it does not rise to all our wishes, yet it appears to me 
calculated to procure to the United States such advantages as 
entitle it to our acceptance." In this opinion all the Cabinet 
concurred except Randolph, who was uncertain as to the wis- 
dom of ratification. 

It is much to be regretted that we have no record of the 
Senate debates on the treaty. These debates, however, were 
but the beginning of a two years' controversj^ during which 
every phase of the subject was rehearsed to the point of ex- 
haustion among the people and finall}^ in the House. Popular 
attack upon the treaty was delayed somewhat b}^ the fact that 
the Senate had ordered the terms of the agreement kept secret. 
About the 1st of July, however, the treaty was made public 
through the misconduct of Senator Mason, of Virginia, who 
gave a copy of the document to a Philadelphia editor. Jef- 
ferson spoke Republican sentiment when he referred to Ma- 
son's deed as "a bold act of duty in one of our Senators." 
He further characterized the treaty as "execrable," "an in- 
famous act," "stamped with avarice and corruption," and, 
finally, " nothing more than a treaty of alliance between Eng- 
land and the Anglo-men of this country against the legislature 
and people of the United States." The publication of the 
treaty precipitated a storm of opposition throughout the 
country. Public meetings denounced it. A copy was burned 
before the residence of the British minister in Philadelphia. 
Jay was dragged in efiigy through the streets. The personal 
character of the President and other leading Federalists was 
bitterly attacked. The sheets of Cobbett, Freneau, Fermo, 
and Bache reveled in abuse and malignancy. On no occasion 
since the founding of the nation had public opinion been so 
decided and demonstrative. Throuo-hout the summer and 



288 AMEEICAN HISTORICAL ASSOCIATION. 

fall of 1795 the country was flooded with pamphlets, anony- 
mous letters, and circulars. 

The most ardent defender of the treaty was Alexander 
Hamilton, who at the close of January had resigned his Cabi- 
net position in order to. return to his law practice in New 
York, but who nevertheless continued to interest himself in 
public afi'airs and to exert great influence in the disposal of 
them/' Hamilton had never cherished much regard for Ran- 
dolph and had upon numerous occasions interposed his own 
ideas to the end of modifying those of Randolph, and of Jay 
and Washington as well. When the treaty was Anally made 
known, however, he entered enthusiastically into the work 
of securing its speedy ratification and its complete execution. 
Through two channels Hamilton sought to reconcile the coun- 
try to the work of Jay — first, in his state paper submitted to 
President Washington July 9, 1795,^ and second, in his " Camil- 
lus" essays,'' published at intervals during the closing months 
of the same year. 

In brief, Hamilton's position on the question of compensa- 
tion for the negroes was as follows: That the conduct of the 
British soldiery in "seducing away" the negroes was "to the 
last degree infamous," but to have surrendered them to their 
masters after promise of lil^erty would have been even more 
infamous; that it had not been the intention of the British 
commissioners at Paris to stipulate any such surrender (sub- 
stantially the same argument used by Grenville); that if the 
treaty provided for any such surrender the provision was, as 
Grenville said, "odious;" that under the laws of the United 
States negroes were propert}^, and therefore, when they fell 
into the possession of the British, by whatsoever means, they 
became British property by virtue of the ordinary rules of 
warfare; that in any event the United States had been the first 
party to violate the Paris treatj^; and, finally, that the whole 
subject was involved in so much honest doubt that "the acting 
of the other party on a constructi')n difl^erent from ours 
could not be deemed such a clear manifest breach of treaty 
as to justify retaliation." 

Popular disapproval of such sentiment, as well as of the 
treaty in whose defense it was uttered, increased rather than 

a See Jefferson's letter to Madison, Sept. 21, 1795, Jefferson's Writings, VII, 31. 
6 Works of Alexander Hamilton, IV, 322 et seq. 
clbid., IV, 871 et seq. 



jay's treaty and slavery interests. 289 

diminished as the summer of 1795 went by. Hamilton did 
all within his power to stem the tide. Jefferson spoke of him 
as "really a colossus to the antirepublican party" and as 
"without numbers a host within himself," The very unset- 
tled state of the public mind gave rise to some of the most 
remarkable of our early controversial literature. Under the 
pseudonym of "Camillus," Hamilton began the publication of 
a series of essays which had for their sole purpose the recon- 
ciling of the people to the action of the Administration in rati- 
fying the treaty. In the third essay the subject of the negroes 
received the most careful attention. The argument advanced 
was virtually repeated from the paper submitted previously 
to the President. In the Camillus essa}^, however, Hamilton 
expressed with much more vigor the conviction that in de- 
manding compensation for the negroes the United States was 
exceeding her rights under the treaty of Paris. Of course, in 
estimating Hamilton's attitude on this question the circum- 
stances under which he wrote must be kept in mind. He was 
attempting to defend the work of Jay and to secure popular 
support for the treat}^ and was, therefore, inclined to set 
forth the various issues from the British rather than from the 
American point of view. He naturally dwelt longest upon 
those things wherein the contention of Great Britain was 
most securelj'' grounded. The bounds of truth and propriety, 
however, seem never to have been seriously transgressed. In 
behalf of the British contention that the treaty provision 
meant merely that there was to be no further depredation, a 
vast array of arguments was brought forward. These argu- 
ments need not be stated here, inasmuch as they were all 
based upon facts and theories which we have already had 
occasion to notice. 

In the fifth (kmillus essa}^ Hamilton made another vigor- 
ous plea of justification for Jay's treaty from the standpoint 
of the negro question. Of the three great objects aimed at 
by the United States in negotiating the treaty of 1794 — com- 
pensation for the negroes, surrender of the western posts, 
and compensation for spoliation during the war then in prog- 
ress — two had been satisfactorily achieved. One — compensa- 
tion for the negroes — had been abandoned. But this claim, 
declared Hamilton, was not only the least important of the 
H. Doc, 702, pt, 1 19 



290 AMERICAN HISTORICAL ASSOCIATIOl^. 

three, but was very doubtful in its justice. In abandoning it 
the United States had suffered no dishonor. "It is a fact," 
said Hamilton, "which I assert on the best authority, that 
our envoy made every construction of the article relating to 
this subject, and to obtain compensation; and that he did not 
relinquish it till he became convinced that to insist upon it 
would defeat the purpose of his mission and leave the con- 
troversy between the two countries unsettled." Hamilton 
asserted that, in view of these things, none except "certain 
hot-heads" who woald have opposed the treaty on some ground 
anyway could fail to see that it was far l^etter for the United 
States to secure what had been gained by the work of Ja}^ 
than to forfeit all by stubbornl}^ holding out for a claim which 
could not be well substantiated. " There was no general prin- 
ciple of national right or policy to be renounced. No consid- 
eration of honor forbade the renunciation; ever}'^ calculation 
of interest invited to it." 

Our loss in not having a record of the Senate debates on 
the Jay treaty is largely compensated by the fact that the 
House, stepping be3^ond its accustomed limitation into a field 
which many regarded as forbidden to it, during the spring of 
1796 took into consideration the Jay treaty and gave it more 
extended and deliberate attention than had the Senate in its 
brief session during the previous summer. Three weeks were 
consumed by the House in discussing its disputed constitu- 
tional right to engage in the consideration of treaties/' By 
some it was maintained that the House was vested with dis- 
cretionary power to carry a treaty into effect or to refuse to 
do so by failure to vote the necessary financial supplies. By 
others it was contended that the Constitution vests the treaty- 
making power exclusively in the President and Senate, and 
that the House must acquiesce in all treaties made under the 
sanction of these powers. Edward Livingston, of New York, 
moved that the President be requested to lay before the House 
the papers relating to the Jay treaty. The motion was carried, 
the Republicans being in the majority ; but Washington refused 
to comply with the request on the ground that to do so would 
set a dangerous precedent, since, in his belief, the House had 
no share in the treaty-making power. The right to demand 
the papers was reaffirmed by the House, and the debate drifted 

«The debate began on the 7th of March. It is reported in full in the Annals of Con- 
gress, Fourth Congress, first session. 



jay's teeaty and slaveey interests. 291 

into a general consideration of the merits and faults of the 
Ja}^ treaty. Of this debate Chief Justice Marshall afterwards 
declared that "never had a greater display been made of 
argument, of eloquence, of passion;" and Washington declared 
that it "suspended in a manner all other business" of the 
House and "agitated the public mind in a higher degree than 
it has been at an}^ period since the Revolution." 

The debate was opened by the notable speech of James 
Madison, April 15. Madison spoke for the Republican ele- 
ment of the House and of the country, and, as might be ex- 
pected, manifested extreme dissatisfaction with the treaty.*^ 
Among its faults he deemed by no means the least its failure 
to provide for the execution of the slavery clause of the Paris 
treaty of 1783. He could discover no adequate excuse for 
"the ver}^ extraordinary abandonment of the compensation 
due for negroes." In his estimation the attempt of Hamilton 
to discredit the American claim was little less than treason- 
able. Until recently, Madison contended, Great Britain had 
repeatedly recognized the essential justice of the American 
demands, and had postponed compliance with them merely 
until the Americans in turn should have fuliilled certain obli- 
gations. The truth of this proposition was beyond question. 
Not only had Carleton recognized at the time of the depoi'ta- 
tion of the negroes that it might be subsequently necessary 
for England to psLy for them, but Carmarthen and Pitt, in 
their discussions with Adams and Morris, had generally 
acquiesced in the justice of the American claims. These ad- 
missions on the part of the British ministers furnished the 
most clinching argument at the disposal of the American claim- 
ants. It was not until Grenville's negotiation with Jay that 
all obligations with regard to the negroes were disclaimed by 
the British. Madison, therefore, charged Ja}" with having 
3aelded to a mere makeshift, an afterthought, which Gren- 
ville had been shrewd enough to beguile him into recognizing. 
The United States, continued Madison, ought never to have 
acceded to the British interpretation of the peace treaty. One 
nation had as much right to construe the terms of the agreement 
as the other. If no conclusion could be reached through the 
regular channels of diplomacy, the matter should have been 
settled by a board of arbitration. To abandon the claim, as 

a Annals of Congress, Fourth Congress, first session, I, 975. 



292 AMEEICAN HISTORICAL ASSOCIATION. 

Jay had done, was to admit either that the United States had 
been in the wrong or that her right to interpret the treat}' 
was not so good as Great Britain's, However desirable the 
obtaining of commercial concessions for the merchant class, 
the securing of these could not, as Jay had urged, be regarded 
as compensation for the losses of the slaveholders. The Gov- 
ernment of the United States was under just as much obliga- 
tion to secure justice for the agricultural as for the merchant 
classes. 

On the day following Madison's speech the House listened 
to a very able argument along the same line by Mr. Nicholas, 
of Virginia." -He, too, maintained that the right of the former 
owners to compensation for the negroes was well founded. 
He realized, as he said, that in the practical work of treat}^ 
making it often becomes necessary to forego certain rights 
and to abandon certain just claims, but he did not think that, 
in consideration of what the United States had received, Jay 
had been justified in abandoning the claim for compensation. 
He lamented the recent inclination of Great Britain (and the 
acquiescence of certain prominent Americans) to interpret the 
treaty of peace as applying only to the negroes who remained 
in possession of the inhabitants when peace was declared. 
He thought it too late to extort such an unwarranted mean- 
ing from a contract after it had existed ten years. In sup- 
port of his contention that Great Britpan never denied that 
the clause applied to all the negroes in both British and 
American possessions, he referred to three well-known and 
very pertinent facts: (1) That Mr. Adams, who had been one 
of the commissioners, informed the Senate in the course of 
its deliberations on the Jay treaty that it was the unquestion- 
able meaning of the article to save all negroes and other prop- 
erty then in the hands of the British, and that during his stay 
at the British court as the first American minister this con- 
struction of the treaty had never been denied, and that it 
seemed to be understood by the ministry that, on a settlement 
with the United States, compensation must be made; (2) that 
Mr. Jay himself, while Secretary of Foreign Affairs, had had 
ample occasion to investigate this whole matter on both sides 
of the question and had arrived at the conclusion that we were 
entitled to compensation; (3) the reputed author of the best 

«Ibid., I, 1003. 



jay'*s treaty and slavery interests. 293 

defense of the treaty (Mr. Hamilton) in the year 1783 had 
himself introduced a resolution into Congress declaring that 
the negroes, etc., had been carried away b}^ the British armies, 
contrary to the true intent and meaning of the treat}^ 

In reply to the argument of Mr. Nicholas, Mr. Swift, of 
Connecticut, denied the validity of the American claims in a 
tone so decisive that not even Grenville himself could have 
done it better, f' It was enough, Mr. Swift asserted, simply to 
look at the article itself in the treaty of peace. He was sur- 
prised that an}^ person could ever have entertained an opinion 
that the slaveholders were entitled to compensation. If the 
treaty stipulation be studied, he thought, it will be evident 
that it was intended only to prevent the British from carry- 
ing away negroes and other property that should be taken in 
the future, and could have no reference to those captured 
during the war and before the treat}- , the property of which 
had vested in the captors. That point was so clear, said he, 
as not to admit of any doubt. On an}^ other construction they 
might claim all the property plundered during the war, which 
no one wished to do. Swift therefore asserted that the onl}^ 
respects in which the treaty of peace had been violated were 
the nonpayment of British debts and the retention of the 
western posts. This was a radical position assumed with rare 
self-assurance. It called out a strong counter argument from 
Mr. Giles, of Virginia, to the effect that unless by the pro- 
vision of the treat}^ of peace had been intended the restoration 
of negroes captured during the war, the entire clause was 
superfluous; for when the treaty was made the British were 
in New York and the negroes in the Southern States, and it 
was not to be supposed that the commissioners feared that 
after peace should be declared the British arnw would start 
southward on a slave-hunting expedition.^ 

On the whole, the best defense of the Jay treaty brought 
forth during this debate was that by Mr. Hillhouse, of Con- 
necticut.'' In his speech of the 19th of April he undertook to 
prove that the assertions of foregoing speakers (Madison, 
Nicholas, Giles, and others) were without foundation of fact, 
and that the American claims could be maintained on neither 
a legal nor a moral basis; that negroes, at least in the estima- 

a Annals of Congress, 4 Cong., 1 sess., i, 1015. 
blbid., i, 1026. 
oIbid.,i, 1078. 



294 AMEEICA.N" HISTOEICAL ASSOCIATION. 

tion of the commissioners, were property admitted of no doubt; 
" negroes or other property," said the treaty. By reason of 
this fact, as well as by the acknowledged laws of war, the 
negroes who during the course of the war had by any means 
come into possession of the British thereby became British 
property, to be disposed of at will. The treat}^ provision was 
clearly not retrospective. It applied only to negroes who at 
the time of the declaration of peace were still in the posses- 
sion of the American inhabitants. If any of this class had 
been carried off by the British, the treaty would have been 
thereby violated; but no accusation of this sort had been 
brought. In all such cases of doubt, where the freedom of a 
human being is involved, the benefit of the doubt should be 
given to the side of freedom. Upon this proposition Mr. 
Hillhouse based a clear and forcible plea for the libert}^ of the 
black man worthy of the abolition orator of Garrisonian times. 
It is significant that the five speakers whose opinions we 
have just noted represented but two States. Madison, Nicho- 
las, and Giles were from Virginia; Swift and Hillhouse from 
Connecticut. The three Virginians were agreed that compen- 
sation for the negroes should be demanded. The two Con- 
necticut speakers contended that it was both illegal and 
immoral to make such a demand. Already the inevitable 
divergence of opinion between North and South as to the 
nation's attitude on the slavery question had begun to appear 
in the councils of state. During the years immediately fol- 
lowing the treaty of peace the people of the United States had 
been practically unanimous in defending the American claims 
for restoration of the negroes or compensation for losses 
incurred. But after a decade of discussion and apparently 
futile efforts along this line there came to be an appreciable 
number of the people, particularly, of course, in the Northern 
States where the loss was not felt and where there was a feeble 
but rising tide of sentiment against the slave system, who were 
more than willing to see the claims abandoned. And not only 
had many of them come to believe that it was highly inexpe- 
dient to press the claims, but many also were contending, 
after the fashion of Swift and Hillhouse, that it had never 
been the intent of the treatj^ that compensation be made for 
negroes captured by the British during the war. So that 
while it was being urged by the slaveholders of the South that 



jay's treaty and slavery interests. 295 

even Great Britain had never declared for this loose construc- 
tion of the treaty until she came to negotiate with Jay, it was 
beginning' to be asserted by men of the North that even if 
Great Britain had really been so late in advocating this inter- 
pretation of the agreement, she nevertheless would have been 
in the right had she done so a decade before. As one of the 
participants in the House debate pointed out, men's interpre- 
tations of treaties are subject to change just as are their con- 
structions of constitutions. Economic considerations and 
moral feelings have much to do with both. 

It would be easy to exaggerate the antislavery sentiment 
thus manifested during the agitation over the Jay treaty. 
Despite the arguments and pleas of such men as Hamilton, 
the treaty never became popular; and a leading source of dis- 
satisfaction continued to be its failure to secure compensation 
for the negroes. Whatever else may have been deemed set- 
tled by it, certainly the negro question was not. The slave- 
holders of the South, knowing well the abolitionist propensi- 
ties of tJay, were not slow to conclude that he had willingly 
betrayed their interests by trading off their claims in return 
for commercial privileges for New England. Hamilton's tes- 
timony that Jaj^ had abandoned the negro claims only when 
compelled to do so by fear of breaking off the entire negotia- 
tion, did not satisf}^ the claimants. And, moreover, since the 
people in the North could not find in the treaty any very sub- 
stantial commercial advantages the acquisition of which could 
be attributed to the abandonment of the slave owners' demands, 
there remained little ground for hope that the question might 
not again disturb our diplomatic relations. 

After surveying at such length the various constructions put 
upon the provision of the treaty of peace relating to negroes and 
the various arguments pro and con upon that subject used in 
attack or defense of the Jay treaty, it seems hardly necessary in 
closing to do more than mereh^ offer a few suggestions upon 
the merits of the controversy. Diplomacy has been said to 
abhor certaintj^ as nature abhors a vacuum. While it is to be 
hoped and believed that this principle is falling into disre- 
pute along with many other relics of Machiavelism, yet so 
long as language remains flexible will diverse interests of men 
dictate conflicting interpretations of identical forms of expres- 
sion. Certain it is that the negotiations at Paris concerning 



296 AMERICATSr HISTORICAL ASSOCIATIOlSr. 

the negroes were incidental rather than fundamental. The 
British agent claimed restitution of confiscated Tory estates. 
In rebuttal the American commissioners claimed compensa- 
tion for the negroes and other propert}^ which had been taken 
as plunder b}^ the British soldier}^ during the war. It being 
found that no agreement could be reached on these contested 
points, they were relinquished for the time and other matters 
taken up. Finall}^, at the last moment, and without discus- 
sion, Mr. Laurens's provision against the carrying away of 
negroes was inserted. In due time the execution of the treaty 
was called for by each nation. Upon three matters, the posts, 
the debts, and the negroes, there was hesitation. As to the 
simple meaning' of the provision regarding the posts and the 
debts there could be no division of opinion. The question 
on that score was merely as to whether or not the plain stipu- 
lations should be carried out. 

But as to the negroes there was uncertainty. Did the 
clause enjoin the restoration of all negroes held by the British 
at the close of the war, or did it appl}^ only to such as might 
be taken after the. treaty of peace? As time went on the 
British became more and more firm in the latter conviction. 
And the same view began to be advanced in America, much 
to the chagrin and disgust of 'the Southerners who had been 
called upon to suffer the heaviest losses. If an attempt at an 
impartial interpretation of the treat}^ on this point were to be 
made, it would seem that so far as the question was of strict 
legal construction the right was largely on the side of Great 
Britain, but so far as it was a matter of the intent of the nego- 
tiators the right was even more certainly on the side of 
the United States. From a moral standpoint there was not 
much distinction between the claims of the two parties. A 
study of the earlier negotiations, the letters and conversations 
of the commissioners, as well as the expressions of opinion 
of British ministers and agents during the years immedi- 
ately following the negotiations of the treaty, convinces the 
present writer that it was understood by the commissioners 
on both sides that the negro clause was to be retrospective in 
its operation. The testimony of John Adams that such was 
the case has already been cited. If it be wondered that the 
British agent did not object to the incorporation of such pro- 
vision in the treaty, it should be remembered that there had 



jay's treaty and slavery interests. 297 

already been placed in the instrument a stipulation concern- 
ing the restoration of Tory property, which had previously 
been regarded as balancing- the negro claims. 

But that the words of the treaty actually and clearly ex- 
pressed this intention admits of serious doubt. It was de- 
clared that the evacuation should be made " without carrying 
away any negroes or other property belonging to the Ameri- 
can inhabitants." The crucial point was whether the negroes 
whom the British carried awa}' could any longer be considered 
property of the American inhabitants. Clearly if by their 
changed conditions the negroes ceased to be property of the 
American inhabitants the claims set up by the United States 
were without foundation, for the treaty applied only to such 
property. Secretary Randolph's idea that, though the slaves 
had become property of the British, they were engaged to be 
restored to their former American owners by reason of the 
treat}^ stipulation was certainl}?^ erroneous. For whatever that 
stipulation may really have meant, it manifestly did not enjoin 
the handing over of British property to the people of the 
United States. The whole matter then resolves itself to the 
one question, Was the American claim of retention of prop- 
erty rights in the negroes justifiable under the recognized 
principles of international law? It is a well-established rule 
that slaves escaping in time of war from one belligerent to 
another, even though the latter be a slaveholding power, are 
legally free from their former masters. Halleck asserts that 
under the shield of the law of nations such slaves can not be 
regained by their former masters even through the operation 
of the law of postliminy. « Dana, in his edition of Wheaton's 
International Law, says the same thing. ^ It matters not 
whether the refugee slaves actually gain their freedom or 
merely effect a change of masters, if the operation takes place 
in the course of a recognized state of war the authorities of 
the army sought are under no obligation and usually have lit- 
tle disposition to return them. It would seem, then, that so 
far as those slaves were concerned who voluntarily sought the 
British lines the ownership of their masters had been destroyed 
beyond the point of revival. 

The case of the other class of negroes — i. e. , those carried 

a Halleck, Elements of International Law, p. 368. 
&Wheaton, International Law, ed. by Dana, p. 441. 



298 AMEEICAN HISTORICAL ASSOCIATION. 

off by force — presents a somewhat different problem. So far 
as a slave is to be considered as a mere article of private 
property — "a movable corporeal chattel" — he is not subject 
to capture and appropriation any more than other private 
property. In his character as a human being, however, the 
slave differs widely from such other property. Since he can 
be used by the will of his master or State in active service 
against the enemy, it is generally regarded as legitimate for 
that enemy to take possession of the slave bj^ force and turn 
his services against his former master. In other words, the 
condition of the slave follows the fortunes of war in the sense 
that he is subject to capture and service. There can be no 
doubt that if the British had been successful in the war the 
slaves would rightfully have remained in their possession, or, 
at least, at their disposal. The property rights of the American 
inhabitants would have been considered extinguished. It is 
doubtful, however, whether a different outcome of the war 
could give a different status to the captured negroes. By the 
laws of war they had become British property, and had thereby 
ceased to be American property. The ethics of the dn,y among 
both combatants did not elevate the negro above the condition 
of ordinar}^ propert3^ His status was closely approximated to 
that of horses and cattle. The case set up by the United States 
was founded, not on moral principles, but on the alleged 
rights of propert}^ If it could not be maintained that the 
negroes taken b}' the British continued to be American prop- 
ert}^, the claims of the slaveholders fell of their own weight. 
But the authority of modern international law (although not 
so clearly defined at the time of which we are speaking as it 
is at the present day) must be conceded as giving its support 
on this point to the side of the British. And since the treaty 
provided only against the carrying away of American prop- 
erty, it would seem that the negroes taken during the course 
of the war were not included in the literal meaning of the 
treaty stipulation. This does not mean that the British con- 
duct with regard to the negroes was in all respects justifiable. 
It simply means that, given the process by which the slaves 
had come into the possession of the British armies and given 
the generally accepted rules of international law on the sub- 
ject, the legal defense set up by Grenville and his colleagues 
must be judged well-nigh impregnable. 



1 ii 



